1.1 Definitions and Interpretation
“Account” is a single point of entry via the UI through which User(s) accesses and uses the Integrated OTT Solution.
“Additional Brand or Service (on existing platforms)” means Company is adding one or a set of branded applications in addition to the initial applications included in the included order.
“Accedo One” is a cloud based Saas product, provisioning that enables a User to set-up, manage, monitor and control End-User´s multiscreen application components and configurations independent of device platform.
“App or Application” means a client application or a hosted web application used to deploy Content on the platforms (including but not limited to for example iOS, Android, Roku) which are licensed under this Agreement.
“Package” means a stand alone instance of Accedo One or combination of Accedo One platforms and apps with the entitlements amounts and corresponding services set forth in the order and existing Price List.
“Content” means all content, data, video, or information in any form that is uploaded to Accedo One by the Company or on Company’s behalf, including any such Content that is ingested into Accedo One from third parties at the direction of the Company.
“App Submission Support” means post launch uploading of Apps towards the App Markets included in the Order. Example: Supplier will upload the Apps to Google Play and inform the Customer that the App is updated and can now be published by the Customer.
“Platform” means an internet-connected device serviced by Accedo One, including but not limited to Web, iPhones, Tablets, Android phones, Roku, Fire TV, Apple TV, Android TV, as updated from time to time.
“Gold Support Upgrade” means Gold Support purchase as set forth in the existing support definition.
“Tivo Corp Rights” means the proprietary technologies and patents which are owned by Tivo Corporation, and any other entity that directly or indirectly controls, is controlled by or is under common control with Tivo Corporation, as of Effective Date as well as those same technologies and patents in the future, regardless of their owner.
“User” means a single person, authorized by the Company to access and use the Company’s Accedo One Account(s) on the Company’s behalf, with a unique username and associated password, typically an employee or a contractor of the Company.
“End-User” means a consumer of the applications. The customer’s customer.
“Web Hosting” means provision of a managed hosting service for the deployment of web, mobile web and other hosted applications generated by Accedo One.
“Traffic” means the total number of gigabytes (“GB”) of Content transferred by Supplier on behalf of the Company.
“Integration(s)” means technology connecting Accedo One to third-party partners and/or proprietary systems.
“Marketplace Integrations” means already existing Integrations that can be added and configured from Accedo One with minor engineering work.
“3rd or Third Party integration” means a server side integration with an established vendor that offers its product on the open market. The 3rd party are all integrations that are not available and currently pre-integrated in the Accedo One marketplace.
“CSR” means Customer Support Request, a request by the Customer for Support. This may be in response to an Incident, Query or request for additional support services.
”Concurrent user(s)” means the total number of Users simultaneously using an App to access Accedo One. The Concurrent user count is calculated by counting the total number of unique Platform UUIDs accessing a given Accedo One API endpoint within one minute.
“Availability” means the total uptime of Accedo One, measured monthly as a percentage of time when the platform is available for end consumer usage.
“Support levels” means the combined work related to post-launch issues, including defect identification, resolution, and testing. As well as any additional services for post-launch support that are not directly related to the “Availability” of the service, as defined in this document.
“Customer data” means all personal identifiable data gathered from end-user(s) usage of the Customer’s service.
“Monthly Active Devices” means an application that makes at least one call to the Accedo One API, counted on a monthly basis, per application, as determined by our records.
1.2 The Service
The “Service” means those services that Company has ordered from Supplier, including Accedo One, the Apps and any Integrations, excluding Third Party Integrations, as applicable, and such other online services as Supplier makes available from time to time.For the avoidance of doubt, the Service does not include Company’s Content or software either developed by Company or licensed from a third-party (defined in 1.13) that are not included in the Order or Statement of Work (“SOW”) in this agreement. By using the online user interfaces (collectively, the “UI”) provided as part of the Service, Company may make choices about the presentation, management and distribution of the Content and/or Apps. Company may change its selections as permitted by the Service. In all cases, however, Company’s last selections in the UI, as reflected in Supplier’s database, shall be conclusive in the event of any dispute concerning Company’s use of the Service.
1.2.1 Access to the Service; Free Accounts; Beta Services
(a) Access to the Service. Access to Company’s Service Account(s) shall be enabled by use of username(s) and password(s) (“Credentials”) selected by Company. An “Account” is a single point of entry via the UI through which Company accesses and uses the Service. Except where Supplier has actual notice of loss, theft or unauthorized use of Company’s Credentials, (i) Company is responsible for all activity occurring in Company’s Account(s) and (ii) Supplier shall have the right, without further inquiry, to rely on the provision of Company’s Credentials as sufficient to authenticate Company’s use of the Service.(b) Free Accounts. Supplier may, from time to time, offer free Service Accounts, such as Accedo One trial Accounts or trial Apps (“Free Account(s)”). Unless otherwise specified during the Account registration process, the terms and conditions of this Agreement shall govern the use of such Free Accounts. Supplier may terminate any Free Account at any time without notice, in its sole discretion. Notwithstanding anything to the contrary in this agreement, the service is provided “as is” and without any representation or warranty of any kind in connection with any Free Account(s).(c) Beta Services. Supplier may, from time to time, offer products or services that are not generally available to all Supplier customers (“Beta Services”). Unless otherwise indicated, all Beta Services will be offered at no cost and will be identified as “beta” or in a manner that indicates that the Beta Service is in limited or pre-release. Such Beta Services may still be in development and Supplier may change aspects of the Beta Services at any time, including prior to general release. Company will not be obligated or required to use any Beta Services. Supplier may cease offering any Beta Services, or cease offering such services at no cost, at any time without notice, in its sole discretion. Notwithstanding anything to the contrary in this agreement, Beta Services are provided “as is” and without any representation or warranty of any kind.
1.3 Company’s Obligations(a) Restrictions on Use. Company covenants that it will not (i) use the Service in any illegal or unlawful manner or for any illegal or unlawful purpose or (ii) perform any act which is intended to harm Supplier or the Service. Supplier will not review or screen Content or Apps on a regular basis for compliance with this Agreement or applicable law, and Supplier shall have no obligation to do so, provided, however, that in addition to any other rights Supplier may have, Supplier reserves the right to suspend Company’s access to and/or use of the Service, or any particular Content or App, to the extent that Supplier reasonably determines, in good faith, that such suspension is necessary to comply with applicable law or to prevent significant harm to any End User or the Service; provided further, however, that in such event, Supplier shall use commercially reasonable efforts to suspend only that portion of the Service, or any particular Content or App, as is reasonably necessary to prevent the occurrence or continuation of such violation and/or harm.(b) Obligation to Pay. Company shall pay Supplier the fees set forth in an Order and/or SOW in accordance with the payment terms set forth in this Agreement and each Order and/or SOW. Company shall be responsible for and shall pay any applicable sales, use or other taxes or duties, tariffs or the like applicable to Company’s Order and/or SOW (except for taxes on Supplier’s income). All payments shall be made without deduction for withholding taxes. Late payments may be subject to fees at the rate of 1.5% per month or, if lower, the maximum rate allowed by law. If the Company fails to pay applicable fees when payment is due, then in addition to any other rights Supplier may have, Supplier shall have the right to suspend delivery of all or a portion of the Service to Company, provided that Supplier has supplied Company prior notice and 5 days’ opportunity to cure. If Supplier pursues collection efforts against Company due to Company’s failure to pay fees due under this Agreement, Company shall pay Supplier’s reasonable costs of collection, including any attorneys’ fees related thereto. All fees are earned when received and are non-refundable.
1.3.1 Supplier’s ObligationsSupplier agrees to (a) make the Service available to Company in accordance with this Agreement, including any current Order or SOW; and (b) perform any other obligations expressly identified in any current Order or SOW.
1.4 Term(a) Term of this Agreement. This Agreement commences on the Effective Date and shall remain in effect until all of Company’s Orders have expired or been terminated in accordance with the terms of this Agreement (the “Term”). The “Effective Date” of this Agreement shall be the date specified in Company’s initial Order or, if such Order was submitted online, the date Company submits the online Order. If the Company has entered into this Agreement as part of the online Account registration process (such as for trial) the Effective Date shall be the date that Company accepts this Agreement online. If Company is using the Service pursuant to a trial and does not submit an Order prior to the conclusion of the trial or test period, this Agreement will terminate at the end of the trial or test period or, if later, the date Supplier closes such Free Account.
(b) Term of Orders. The initial term of each Order shall commence on the date specified in the Order or, if such Order was submitted online, the date Company submits the online Order (the “Effective Date”). Unless earlier terminated in accordance with this Agreement, each Order shall remain in effect for 1 year from the Effective Date (unless a different term is set forth in Company’s Order) (“Initial Term”), following which it shall automatically renew for successive 1-year periods on the first day following the end of the Initial Term (each, a “Renewal Term”) unless either Party hereto has provided notice to the other of non-renewal at least 90 days in advance of the end of the Initial Term or, if applicable, the then-current Renewal Term. Notwithstanding the prior sentence, all Orders for Free Accounts, unless earlier terminated by either Company or Supplier, shall remain in effect for the period of time indicated during the Account registration process.
1.4.1 TerminationUnless otherwise prohibited by law, either Party may terminate this Agreement, including any outstanding Orders: (a) if the other Party is adjudicated bankrupt or otherwise seeks to avoid its performance obligations under applicable bankruptcy or insolvency laws or (b) upon the occurrence of a material breach of this Agreement by the other Party if such breach is not cured within 30 days after written notice identifying the matter constituting the material breach. In the event of the termination or expiration of this Agreement, all licenses granted under this Agreement shall terminate automatically. Upon an early termination of this Agreement for any reason, all then-current Orders shall terminate and, unless such termination resulted from a material, uncured breach of this Agreement by Supplier, all fees and expenses payable under any such Orders shall become immediately due and payable.
1.5 Title(a) As between the Parties, Supplier owns all right, title and interest in and to the Service. This Agreement does not convey to Company any ownership interest in or to the Service, but only a limited license to the Service that is revocable as set forth in this Agreement. As between the Parties, Company owns all rights, title and interest in and to the Content. This Agreement does not convey to Supplier any ownership interest in or to the Content, but only a limited license to the Content that is revocable as set forth in this Agreement.
(b) Company responsibility for Company content. By uploading, posting, submitting or otherwise disclosing or distributing Content, Company represents and warrants that it owns all rights to the Content and that any Content it posts does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights (defined below) or rights of publicity or privacy.
(c) Definition of Intellectual Property Rights. For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
1.5.1 Licenses(a) License to Use the Service. Supplier hereby grants Company a limited, revocable (as set forth in this Agreement), non-transferable, non-exclusive, worldwide license to use the applicable Service for which Company has submitted an Order or registered online. All rights not expressly granted to Company are reserved by the Supplier. Except as expressly permitted by Supplier, Company shall not: (i) sublicense, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third-party the Service or any part thereof in any way; or (ii) modify or make derivative works based upon the Service or reverse engineer, decompile or disassemble the Service.
(b) License to Content. Company hereby grants Supplier a limited, revocable (as set forth in this Agreement), non-transferable, non-exclusive, royalty-free, worldwide license to perform all such acts with respect to the Content as are necessary for Supplier to provide the Service in accordance with this Agreement and Company’s selections made through the UI. All rights not expressly granted to Supplier are reserved by Company.
(c) License to Feedback, Suggestions or Recommendations. Company hereby grants Supplier an unlimited, irrevocable, perpetual, transferable, non-exclusive, royalty-free, worldwide license to use and/or incorporate into the Service any feedback, suggestions and/or recommendations provided to Supplier by Company regarding the Service.
1.6 Representations and Warranties(a) The Service. Supplier represents and warrants that (i) it either owns fully and outright or otherwise possesses and has obtained all rights, approvals, licenses, consents and permissions as are necessary to perform its obligations hereunder, exercise its rights hereunder and to grant the licenses granted by it under this Agreement and (ii) the Service, as used by Company in accordance with this Agreement, does not, and shall not, infringe, violate or misappropriate any third-party’s rights.(b) Content and Apps. Company represents and warrants that (i) it either owns fully and outright or otherwise possesses and has obtained all rights, approvals, licenses, consents and permissions as are necessary to perform its obligations hereunder, exercise its rights hereunder and to grant the licenses granted by it under this Agreement and (ii) the Content and the Apps, and their use through the Service, as enabled by Company, directly or indirectly, does not, and shall not, infringe, violate or misappropriate any third-party’s rights.
1.6.1 IndemnificationEach Party agrees to indemnify the other Party and such other Party’s officers, employees, directors, agents, affiliates, subsidiaries, successors and assigns from and against any and all damages, liabilities, loss, government fines, costs and expenses (including reasonable attorney’s fees and litigation expenses) arising out of a claim, action or demand brought by a third-party for a breach of any representation, warranty or covenant made by the indemnifying Party in this Agreement (each a “Claim”) upon the entry of a full and final judgment of such Claim against the indemnified Party. Tivo Corp Rights are always the responsibility of the Company.The indemnification obligations in this section are conditioned upon:
(a) written notice by the indemnified Party to the indemnifying Party within 30 days of the indemnified Party’s receipt of any Claim for which indemnification is sought;
(b) counsel for the indemnified Party reasonably acceptable to the indemnifying Party;
(c) approval by the indemnifying Party of any settlement of the Claim for which indemnification is sought; and(d) such reasonable cooperation by the indemnified Party in the defence as the indemnifying Party may request. Notwithstanding anything to the contrary contained herein, the indemnifying Party shall not, without the prior written consent of the indemnified Party, settle, compromise or consent to the entry of any judgment with respect to any pending or threatened Claim unless the settlement, compromise or consent provides for and includes an express, unconditional release of such Claim against the indemnified Party.
1.6.2 Limitations of liability(a) Limitation. Except for any liability subject to indemnification under clause 1.6.1 and in instances of wilful or reckless conduct, in no event will either Party be liable for any incidental, indirect, or consequential damages (regardless of the form of action, whether such liability is based on breach of contract, tort, strict liability, breach of warranties, failure of essential purpose or otherwise) in connection with this Agreement or in connection with any goods or services provided hereunder even if advised of the possibility of such damages.
(b) Liability Cap. Except for any liability subject to indemnification under clause 1.10 and in instances of wilful or reckless conduct, each Party’s entire liability to the other Party from any cause of action whatsoever (regardless of the form of action, whether in contract, tort, strict liability, breach of warranties, failure of essential purpose or otherwise) will not exceed the Fees that have become due and payable under this Agreement in the twelve months prior to the date that the relevant liability event occurred.
1.6.3 ConfidentialityEach Party agrees not to disclose the other Party’s Confidential Information without its prior written consent. “Confidential Information” includes, without limitation:(a) all intellectual property;(b) financial information (including pricing) and business information; and(c) any other information designated in writing as “Confidential.” Confidential Information does not include(d) Content;(e) information that has become publicly known through no breach by Company or Supplier of these confidentiality obligations;(f) information that is independently and lawfully developed or obtained without access to Confidential Information, as evidenced in writing;(g) information required to be disclosed by law; or(h) the fact that Company is a customer of Supplier.
1.6.4 Identification RightsSupplier shall have the right to identify Company as a customer, and to use Company’s logo in Supplier’s general marketing materials, and Company shall have the right to identify Supplier as the provider of the Service, and to use Supplier’s logo in connection with Company’s use of the Service.
1.7 Third-Party ServicesSupplier may, from time to time, inform Company of third-party products and services that can be used by Company in connection with the Service, including products and services from companies associated with Supplier’s partner program, and Company may opt to use these or other third-party services in connection with the Service. Company’s use of any third-party service in connection with the Service, and any terms, conditions, representations and/or warranties associated with such use, are solely between Company and such third parties. Supplier makes no representation or warranty with regard to any such third-party service, even if such provider is certified by Supplier or selected as a premier provider (or similar designation) by Supplier, and Supplier shall not be responsible to Company in any manner for any such third-party product or service. Supplier does not, unless otherwise mutually agreed in writing, provide maintenance or support for third-party services.
1.7.1 Applications(a) Apps may need to be submitted to the device specific marketplaces (collectively, the “App Markets”) as Supplier may from time to time enable new upgraded versions of the Apps. App Submission Support is provided by Supplier, however Company is responsible for submitting all Apps to the App Markets post launch, for approval and acceptance. Supplier makes no representation or warranty that the App Markets will accept the submitted App or the extent to which an App will be installed and/or used by End Users. Company is solely responsible for ensuring that it and its Apps comply with the App Markets’ policies, including, without limitation, any obligations regarding privacy and privacy policies, and Supplier expressly disclaims any responsibility for any failure of any App to comply with the App Markets’ policies.
(b) Supplier will under this agreement provide Company with updates, bug fixes to Apps on a best effort basis. Supplier does not warrant that the Service will be available at any particular time or location, where third-party dependencies are involved, uninterrupted or secure; that any defects or errors will be corrected; nor that it meets Company requirements.
(c) Supplier may issue critical updates of the Apps (“Critical Updates”) supplied to the Company, including but not limited to device requirement changes, operating system updates and critical defects. These Critical Updates will require steps taken by Company to promptly submit applications to the App Markets or the appropriate Web Hosting. Any delays from the Company to submit a Critical Update, will be the Company’s responsibility.
1.8 NoticesAll notices under this Agreement must be in writing and delivered either by hand, e-mail, certified mail (return receipt requested, postage prepaid) or nationally recognized overnight delivery service (all delivery charges prepaid) and addressed, if to Company, to the contact identified in Company’s most recent Order and, if to Supplier, to Accedo Broadband AB Magnus Ladulåsgatan 63a, 118 27 Stockholm, Sweden.
1.9 General(a) Independent Contractors: Supplier and Company are independent contractors under this Agreement and nothing herein shall be construed to create a partnership, joint venture or agency relationship;
(b) Assignment: Neither Party may assign performance of this Agreement or any of its rights or delegate any of its duties under this Agreement without the prior written consent of the other, except that each Party may assign this Agreement without the other Party’s prior written consent in the case of a merger, acquisition or other change of control, and in such event this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and assigns;
(c) Governing Law: This Agreement shall be governed under Swedish law by the Stockholm District Court applicable to contracts entered into and wholly to be performed therein;
(d) Forum Selection: Any and all disputes arising out of or related to this Agreement or performance hereof, shall be brought exclusively in the Stockholm District Court and the Parties hereby waive any objection thereto;
(e) Statute of Limitations: Notwithstanding any law providing a longer statute of limitations, any claim or cause of action arising out of or related to this Agreement and/or Company’s use of the Service must be filed within one (1) year after such claim or cause of action arose, without regard to the date such claim or cause of action was discovered, or such claim or cause of action shall be forever barred;
(f) Export Compliance: Each Party shall comply with all applicable international export control laws and regulations. Company specifically represents that it is not located in any country or jurisdiction that is subject to US and EU economic sanctions, nor is it acting on behalf of the government of any such country
(g) Effect of Waivers: The waiver by either Party of a breach or a default of any provision shall not be construed as a waiver of any succeeding breach of the same or any other provision;
(h) Survival: All terms of this Agreement which by their nature extend beyond the termination of this Agreement, remain in effect until fulfilled and apply to respective successors and assigns;
(i) Counterparts; Delivery; Acceptance: This Agreement may be executed in counterparts, all of which are considered one and the same agreement, and becomes effective when one or more counterparts have been signed by each of the Parties and delivered to the other Party or upon Company’s submission of an online Order (whichever occurs first). Delivery by facsimile or e-mail and online acceptance are all as effective as physical delivery of an originally executed copy hereof;
(j) Integration; Amendment: This Agreement, including any Orders entered into hereunder, constitutes the entire understanding of the Parties hereto with respect to the matters contemplated hereby, supersedes all previous agreements between the Parties concerning the subject matter hereof and cannot be amended except by a writing signed by authorized representatives of both Parties;
(k) No Reliance: No Party hereto has relied on any statement, representation or promise of any Party or representative thereof except as expressly set forth in this Agreement;
(l) Severability: If any term, provision, covenant or condition of this Agreement is held invalid or unenforceable for any reason, the remainder of the provisions will continue in full force and effect as if this Agreement had been executed with the invalid portion eliminated. The Parties further agree to substitute for the invalid provision a valid provision that most closely approximates the intent and economic effect of the invalid provision;
(m) Purchase Orders/Instruments: Any instruments, including purchase orders, work orders, acknowledgments and vendor registration forms not signed by both Parties (“Instruments”) shall not add to, supersede or modify, the terms of this Agreement and in the event any term of an Instrument purports to add to, supersede or modify any term of this Agreement, such term of the Instrument shall be void and without effect; and
(n) Company Data: Supplier will not use, or allow anyone else to use, Company Data, to the extent that such is collected in the Service, to contact any individual or company except as Company direct or otherwise permit. In addition, Supplier will only use Company Data as permitted by applicable laws and regulations.
(o) Aggregate Data: Supplier may monitor use of the Service by all of its customers users and end users and use the data gathered in an aggregate and anonymous manner. Company agrees that Supplier may use and publish such information, provided that such information does not incorporate any identifiable Company Data, directly or indirectly.
(p) Data Privacy. Supplier and Company agree to treat relevant User data according to applicable regulations.
2. Availability Availability CommitmentSupplier shall use commercially reasonable efforts to ensure that the Service (including the Apps) is available 24 hours a day, 7 days a week. Supplier agrees that the Service (including the Apps) will be available with a minimum monthly uptime commitment of 99.9% for the features of The Service. The uptime availability percentage is calculated by taking the total number of minutes in a calendar month less the number of minutes of Downtime, as applicable, in the calendar month, divided by the total number of minutes in the calendar month.
Service functionality classification
Video Playback – ability of end-users to watch a full video
Content browsing – ability of end-users to navigate through the curated content catalog
Authentication / Registration – ability of end-users to log in into their accounts or create a new account
Subscription Purchase – ability of end–users to purchase a new subscriptions via device-specific mechanisms (for supported devices only)
Entitlements – ability of end-users to gain access to content (content browsing and video playback) included in their subscription.
Non essential functionality includes but not limited to:
Personalization – end-user specific recommendations, watch-history, favorites
Content discovery – discovery of content via search and related content recommendations
Definition of Downtime
Backend downtime: Severe degradation or unavailability of the Service’ backend systems (by e.g not handling incoming API requests from Apps, responding with errors or timing out) which results in unavailability of the Core functionality of the Service.
Backoffice downtime: Unavailability or severe degradation of Service Administrative dashboard (or part thereof) rendering content management functionality unavailable for the Company
Frontend downtime: Unavailability of frontend applications (Apps) to load or deliver Core service functionality.
For an event to be considered as downtime or outage, it must affect a significant portion of users of the Service ( > 1%) and the event must last more than 5 consecutive minutes.
Downtime Events resulting from causes beyond Suppliers´s reasonable control, such as:
Performance degradation or availability of sub-contractors of Supplier
Changes performed by Company, without advance communication with Supplier
in the sub-contractor or other systems integrated into the Service
to video encoding configuration parameters / pipelines
Events affecting global/regional internet connectivity
Force-majeure events shall not be included in the calculation of Downtime.
Scheduled maintenance on the Service (“Scheduled Maintenance”) resulting in a Downtime Event shall not be included in the calculation of Downtime. Supplier may conduct up to 8 hours of Scheduled Maintenance per calendar month (the “Maintenance Limit”). All Scheduled Maintenance shall either be conducted (i) between the hours of 12:00 AM (ET) and 6:00 AM (ET) or (ii) at any time after supplying Company with 10 days advance notice (the “Maintenance Windows”). Each scheduled maintenance window shall not exceed 2 consecutive hours. Any Scheduled Maintenance conducted in excess of the Maintenance Limit or outside of the Maintenance Windows shall be included in the calculation of Downtime.